Peer Review Mission on Freedom of Expression, Istanbul and Ankara,
12-16 May 2014
Chapter 23: Judiciary and Fundamental Rights
Findings and Recommendations
Table of Contents
I.
Section written by Prof. Dr Wolfgang Benedek
I.1.
Executive Summary
I.2.
Purpose of the Mission
I.3.
General Developments since 2011
I.4.
Developments with Regard to Criminal and Security Legislation
I.5.
Developments in the Area of Media Law
I.6.
New Remedies of Relevance for Freedom of Expression
I.7.
Capacity-building Efforts on Freedom of Expression
I.8.
Conclusions
I.9.
Recommendations
II.
Section written by Prof. Dr Katrin Nyman-Metcalf
II.1. Executive summary
II.2. Purpose of the mission
II.3. Developments to the Penal Code and Antiterror Legislation
II.4. Imprisonments of journalists
II.5. State secrets and data protection
II.6. Application of principles of the European Convention on Human Rights
II.7. Internet legislation and cases regarding Internet
II.8. The Regulatory Agencies
II.9.
Media ownership
II.10. Working conditions of journalists
II.11. Media (Press) Self-Regulation
II.12. Conclusions
II.13. Recommendations
1
Section I written by Prof. Dr Wolfgang Benedek1
I.1.
Executive Summary
There have been significant positive developments in the legislative framework since the last
peer review in 2011 as well as visible efforts to address the necessary legal reforms by
measures taken by the government, in particular the Ministry of Justice and the Ministry of
EU Affairs. This resulted in several reform packages and the creation of new human rights
institutions as well as the elaboration of an Action Plan on Prevention of European
Convention of Human Rights Violations. There have also been changes in the practice of the
judiciary towards giving freedom of expression more attention in balancing with reasons for
limitations.
However, also some trends in the opposite direction were observed with regard to the
amendments to the Internet Law (IL) in particular and there are some worrying developments
in the practice regarding the role of the media in the Gezi Park protests and concerning the
removal and transferal of large numbers of prosecutors and judges after investigation into
corruption allegations in December 2013. Criticism was expressed by governmental officials
of the judiciary, in particular of the Constitutional Court, which could be seen as an
interference with the autonomy of the judiciary, in cases related to freedom of expression.
Accordingly, the mission found that since the last peer review in 2011 there have been
significant developments in the legislative framework towards larger freedom of expression,
while important concerns remain to be addressed and new concerns have evolved.
A. Improvements:
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The number of journalists in prison have decreased significantly, sentences were
reduced and trials suspended
The problems for journalists in certain laws have partly been addressed by three
judicial reform packages, i.e. by introducing the benchmark of violence in the
legislation
The practice has evolved towards avoiding prison sentences in defamation cases
The number of indictments under the Article 301, which need the authorization of the
MoJ has dropped significantly
Special Anti-Terrorism Courts have been abolished
The Kurdish language can be more freely used and the Armenian issue discussed
without legal consequences
A new constitutional complaint procedure has been introduced creating an important
new remedy
Prof dr Wolfgang Benedek, Head of Institute of International Law and International Relations and
Director European Training and Research Centre of University of Graz, an independent expert.
1
2
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New human rights institutions like the Ombudsman and the Human Rights Institution
have been set up and started to work
An Action Plan on Prevention of ECHR Violations has been elaborated under the
leadership of the MoJ
Opportunities for education and training activities on FoE have increased
B. Concerns remaining to be addressed:
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Journalists are suffering from insecure working conditions
Only about 1 % of journalists make use of their right to association by joining Unions
The number of defamation cases brought by politicians is still high, although courts
seems to be aware of pertinent jurisprudence of the European Court of Human Rights
and to take it into account
Oligopolistic media ownership structures are generally not conducive to the public
interest/service function of the media, which focus more on entertainment
Governmental control of the media has been increasing
Many journalists consequently feel intimidated leading to self-censorship
The polarization in society is also reflected in the media
The law on demonstrations is used to restrict freedom of expression while freedom of
expression and freedom of assembly need to be applied together.
C. New Concerns:
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Amendments to the Internet Law increase control of the social media, which have
partly taken the role not played by traditional media in public discourse
Trials against use of social media in context of freedom of assembly and FoE
Indiscriminate Twitter and YouTube bans do violate principles of case law of ECtHR
(Yildirim) as confirmed by the Constitutional Court
There is an increasing role for the social media and online news portals because of the
failure to fulfil their public service function by the traditional media
Data retention provisions in the information law are likely not to be in conformity
with the European acquis, in particular after the EU Court decision of April 2014
declaring the EU Data Retention Directive invalid
Enlargement of powers of secret services and their immunity in the amended
Intelligence Law and high fines for journalists reporting on unclearly defined state
secrets has a chilling effect in particular on investigative journalism
High number of judges and prosecutors moved to other positions in courts and
Academy of Justice within short period negatively affects professional performance
and can have negative effects on FoE
Elaboration of Data Protection Law and reforms of the Press Law regarding online
news portals like other legal reforms seem to lack general transparency and therefore
raise fears among part of the media
3
Main Recommendations:
1.
2.
3.
4.
I.2.
In spite of significant improvements in law and practice towards freedom of expression,
some concerns of the past still need to be addressed for which purpose the Action Plan on
Prevention of ECHR Violations can be usefully employed. However, the momentum
needs to be accelerated again.
New challenges need to be addressed like assessing FoE through social media in order
not to negate advances by reforms in traditional problem areas.
Structural problems need to be addressed like media ownership structures or poor
working conditions of journalists contributing to a general climate of intimidation and
lack of public interest reporting
New opportunities of cooperation with the Ombudsman Office and the new human rights
institution as well as with traditional partners like the Ministry of Justice, the Justice
Academy, the Bar Association, media NGOs and academia should be used for capacitybuilding and development of expertise in European standards of FoE. Projects in this
field need to be continued and enlarged.
Purpose of the Mission
The main objectives were to review recent legislative reforms related to freedom of
expression (FoE), relevant judicial practice as well as practice by other authorities, the
ownership structure of the media and the working conditions of journalists in their impact on
the media environment and on FoE.
For this purpose, the independent experts had meetings with a wide variety of media actors,
like journalists and media owners, academics and NGOs, judges and lawyers, human rights
institutions and regulatory authorities as well as competent ministries.
The Turkish Ministries of EU Affairs and of Justice deserve special thanks for co-organizing
the programme and facilitating a constructive dialogue.
The last EU Peer Review Visit on freedom of expression has been undertaken in January
2011 by Lord Macdonald of River Gloven QC, who identified a number of legislative and
practical shortcomings. He reported the existence of serious obstacles to the full enjoyment of
freedom of expression stemming in particular from certain provisions of the Turkish Penal
Code, the Anti-Terror Law and other laws related to the media and the Internet, but also the
practice of prosecutors and judges in opening and pursuing cases related to freedom of
expression. Subsequently, in April 2011, also the Commissioner for Human Rights of the
Council of Europe, Thomas Hammarberg, visited Turkey with a focus on freedom of
expression and media freedom and came to similar conclusions emphasizing in particular that
not enough had been done to reduce the numerous judgments of the European Court of
4
Human Rights finding Turkey in violation of freedom of expression. He was also concerned
with an increasing number of criminal proceedings against and arrests of journalists.2
I.3.
General Developments since 2011
Since 2011, there were three judicial reform packages. The 3rd package by “Law No. 6352
amending some Laws for Effectiveness of Judicial Service and Suspension of Cases and
Sentences Regarding the Offences Committed via Press”, amended in particular the Turkish
Penal Code, the Anti-Terror Law and the Press Law. It also introduced a suspension of cases
and convictions for offences committed before 31 December 2011 via the press, publication
or other communication ways, so-called crimes committed by opinion and thought published
in the media, for which there was a maximum fine of 5 years. Accordingly, all judicial
activities on these cases were postponed. If the persons do not commit any offences within
three years, the cases will be dropped, otherwise they will be continued. This procedure
allowed the Cassation Court to suspend a significant number of cases, but the persons
concerned could also have benefitted from reformed laws instead of being under the threat of
continued persecution for three years. The aim of prevention of re-commission of crime,
which include crimes committed via press can have a chilling effect on the freedom of
expression of those affected.
The focus of the Fourth Judicial Reform Package, which was adopted in April 2013 was
freedom of expression. 3 The main purpose of the package was to reduce the number of
violations found by the European Court of Human Rights in this field. It contained
amendments to eight different laws.
Furthermore, the 5th Judicial Reform Package, which came into force in March 20144 brought
further changes to the Anti-Terror Law, in particular the abolishment of the Regional Heavy
Criminal Courts established under Article 10 of the Anti-Terror Law and the reduction of the
pre-trial detention for crimes falling under their former competence from 10 to 5 years.
Therefore, the provision in Law No. 6352, which allowed the special courts under Article 250
of the Criminal Procedure Code to continue with already ongoing cases was changed by Law
No. 6526 and all cases transferred to ordinary criminal courts.
In addition, the Democratization package 5 of 2014 needs to be highlighted as it lifts
restrictions on the use of different languages and dialects in political campaigns and in
education in private schools and also repeals criminal sanctions in the Turkish Penal code
2
3
4
5
See report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe,
following his visit to Turkey from 27 to 29 April 2011, CommDH (2011) 25 of 12 July 2011.
See Law Amending Certain Laws within the scope of Fundamental Rights and Freedom of Expression
of 11 April 2013.
See Law No. 6526 Amending the Anti-Terror Law, the Criminal Procedure Code and Various Laws,
which came into force on 6 March 2014.
See Law No. 6529 on amending certain laws for the enhancement of Fundamental rights and
freedoms.
5
regarding the use of letters such as q, x and w. In this context, the Chief Public Prosecutor of
Istanbul in a meeting confirmed that the Kurdish language was allowed and that it had
become also possible to mention the words “Armenian genocide”.
Furthermore, in 2012 two new institutions for the protection of human rights were established,
i.e. the Office of the Ombudsman and the Turkish Human Rights Institution, which is
supposed to develop into the National Human Rights Institution of Turkey. While the former
seems to have had a better start than the latter, it is important that both do receive complaints
and thus new remedies have been created, which the Turkish public in general and the media
in particular still have to make proper use of.6
Finally, maybe the most positive development has been the decrease of the number of
journalists in prison. While the peer review of 2011 reported an increasing number of around
40 and this number indeed increased to about 95 according to OSCE sources, at present it has
dropped to less than 30 or according to the Committee for the Protection of Journalists to 16.
The Turkish authorities claim that none of them is in prison because of his or her journalistic
work. Actually they all seem to have been imprisoned on charges under the anti-terror law.
Immediately before the peer review mission several of them have been released.
I.4.
Developments with Regard to Criminal and Security Legislation
This legislation is only of indirect importance for freedom of expression. However, because it
has been used rather extensively against journalists in the past, it has been a major area of
criticism, which in the meantime has been partly addressed by the judicial reform packages,
while major issues remain.
A. Turkish Penal Code
A major point of criticism has been Article 125 TPC, which criminalizes defamation, is
broadly drafted and has been used widely against journalists and broadcasters. In spite of
international criticism, the article has not been revised, while the practice appears to have
changed as prosecutors seem to open fewer cases against the media. This might also be due to
the fact that the Court of Cassation has developed a stricter line on defamation cases by
putting more emphasis on freedom of expression, which also covers heavy criticism, but does
not call for violent action. However, the number of defamation cases is still very high:
according to statistics provided by the Court of Cassation, the number of appealed cases in the
Penal Departments of the Cassation Court in 2013 was 8961, while the number of appealed
cases regarding “compensation for defamation” in the 4th Civil Chamber of the Court was
about 1500.
6
See also under 5.
6
Accordingly, defamation has still not been decriminalized as suggested by the previous pear
review mission, but the recommendation to take freedom of expression better into account in
the balancing process seems to have been accepted. The judiciary is thus mitigating the
ongoing practice of politicians and others to use the defamation rules against criticism.
However, according to the jurisprudence of the European Court of Human Rights public
figures must endure a higher amount of criticism, than ordinary citizens and this seems to be
increasingly taken into account by the Turkish judiciary. A solution to the problem of the
exaggerated use of defamation rules can best be provided by a reform of Art. 125 to take the
case law of the European Court of Human Rights into account. With regard to the longstanding recommendation to decriminalize the offences related to freedom of expression, the
reported fact that hardly any prison sentences are handed down anymore, which in itself is an
important progress, should make it easier to delete this article from the penal law.
Amendments were made to Articles 132-134 TPC protecting the right to privacy, with the
result that journalistic activities are better protected against prosecution under these articles.
With regard to Articles 214-216 and 220 TPC on the protection of public order, there have
been also some amendments. For example, Article 215 TPC now requires a “clear and
imminent danger to the public order” in line with the criteria of the European Court of Human
Rights (ECtHR) in order to make “praising the offences and offenders” a criminal offence.
However, Article 216 TPC on provoking public hatred and hostility has been used to
prosecute public figures for critical remarks on religion like the pianist and composer Fazil
Say for insulting religion by a tweet. This Article would also need to be adjusted and the
judicial practice to be changed.
Also Article 220 para. 8 TPC was amended making the praise of the methods of an
organization an offence only if those methods contain violence, force or threat. A new
provision in paragraph 6 clarifies that the scope is only applicable to armed organizations. It
can be expected that this will reduce the number of cases considerably.
No change is reported in Article 226 TPC, which in the past allegedly was used to prevent
the description or depiction of homosexuality as falling under the publication or broadcasting
of obscene material. Whether this practice has changed, could not be established.
Amendments have been made to Article 285 TPC as well as to Article 288 TPC, which
prohibits attempts to influence prosecutors, judges, courts or witnesses. In both cases, the lack
of at least a public interest provision had been criticized already in the previous peer review
report. Now, reporting about investigations and the trial without exceeding the limits of news
reporting shall not constitute a crime, but there seems to be a lack of clarity what that means
in practice.
No changes are also recorded for Article 301 TPC on insulting the Turkish nation, which
according to the previous peer reviewer should have been repealed or at least amended to
include a clear public interest defense. However, according to the Ministry of Justice, which
7
based on a circular of 2008 needs to give its consent to any prosecutions, the number of
authorizations is few,7 which reduces the problem in practice, but does not resolve it, because
the practice can be changed any time. Furthermore, there are at least two judgments of the
ECtHR regarding Article 301, the implementation of which is pending.
Several Kurdish journalists were detained for membership of an armed organization on the
basis of Article 314 TPC, which also remained unchanged. Some of these journalists seem to
have been recently released, while others remained in detention.
B. Anti-Terror Law
With regard to the anti-terror law, the reform packages did also bring several positive
changes: Article 6 has been amended in a way that the printing or publishing of materials of
terrorist organizations or praising their methods are now punished only if it relates to methods
containing coercion, violence or threat or encourage appealing to these methods. Former
paragraph 5 of Article 6 foreseeing a pro-active ban on publications for terrorist organisations
has been repealed, which led to a fast reduction of banned publications.
Also Article 7 on the prohibition of the funding, managing and membership of terrorist
organizations and propaganda on their behalf, which has been used against journalists and
broadcasters as observed by the peer report of 2011 has been amended in paragraph 2 so that
making propaganda for a terrorist organization is only punishable if related to coercion,
violence or threats thereof. Some other obvious problems of the law were also addressed like
someone who is not a member of a terrorist organization, but committed crimes in their name
under other laws shall no longer be prosecuted for being member of a terrorist organization.
Regarding Article 318 TPC, which makes discouraging people from military service an
offence, the practice under the article seems to have softened, while the article has not been
repealed or amended as suggested, but rather been made more clear and concrete, without
solving the real problem that the provision as such interferes with the freedom of expression
and possibly also the freedom of religion.
C. Law on Crimes against Atatürk
Also the Atatürk law, which has been misused in the past to restrict political speech, has
remained unchanged although the requirement of consent by the Minister of Justice has
resulted in only few cases. The restrictive practice can, however, be changed anytime
according to the political will. Therefore, the mere existence of such laws do have a chilling
effect on political speech.
7
According to the Information Note of the Ministry on EU Affairs on Freedom of Expression of May
2014, in 2012 out of 277 files submitted in 2012, permission was granted only in 18 cases. According
to information received from the Ministry of Justice out of 373 cases in 2013 only about 10 % were
allowed to go on, which actually would mean an increase of cases.
8
D. Law on Demonstrations
According to Bianet reports received 17 persons were sentenced to a total of 31 years for
shouting slogans against Prime Minister Erdogan, on the basis of the law on demonstrations
(No. 2911) combined with other laws, for insulting the prime minister. Therefore, this
application of the law also interferes with the freedom of expression. Freedom of expression
and the right to assembly are closely related. Accordingly, the frequent limitations of these
freedoms by the Turkish Police can constitute a violation of the freedom of expression.
In conclusion, there have been several amendments as part of the third, fourth and fifth
judicial package, which, however, did not cover all the problematic provisions and, in some
cases, did not go far enough. Accordingly, there is a need for a continuation of the reform
efforts. This is recognized also by the Action Plan on Prevention of European Convention on
Human Rights Violations, prepared by the Directorate General for International Law and
Foreign Relations, Human Rights Department, and adopted by the Turkish Government in
March 2014,8 when it identifies the revision of Articles 125, 299 and 301 of the Turkish Penal
Code for bringing it into conformity with the standards of ECHR-case law. Unfortunately,
this is planned only as a long-term goal, while other reforms are to be reached in the medium
term. The action plan also foresees impact assessments of the reformed Articles 215, 220, 277,
285, 288 and 318 to be undertaken in the short and medium term, which provides an
opportunity to see whether the amendments are working in practice and to reform those
provisions further.
E. The New Law Regulating the Intelligence Sector
While in the other fields of penal and security laws there have been some – limited –
developments towards larger conformity with the European standards as contained in the case
law of the European Court of Human Rights, the new Intelligence Agency (MIT) Law 9 points
in a different direction: The law provides wide powers to MIT to obtain all kind of
information from public institutions and private organizations and to wiretap communications,
which creates major interferences with the right to data protection and privacy. With regard to
the freedom of expression its Article 8 foresees imprisonment of 4 to 10 years for any person,
who takes possession, without authorization, of information and documentation concerning
the activities of MIT. In case of publication via radio, television, internet, social media,
newspapers … and all other media tools …, the media owner, content provider, correspondent,
editor, publisher and printer face prison sentences of 3 to 12 years.
8
9
See Directorate General for International Law and Foreign Relations, Human Rights Department,
Action Plan on Prevention of European Convention on Human Rights Violations, published in official
Gazette on 1 March 2014.
See amending the law on the state intelligent services and national intelligence organizations (Law
No. 2937), adopted on 17 April 2014.
9
No doubt that this law will have a strong chilling effect on the publication of news on
activities of MIT, which would be in the public interest. However, no public interest
exceptions exist to the high fines foreseen.
I.5.
Developments in the Area of Media Law
This area is regulated mainly by the press law of 2004, the new broadcasting law of 2011 and
the internet law of 2007. The main focus will be on the amendments of the internet law of
2014 and the subsequent practice as those raise basic issues of conformity with European
standards.
A. Press Law
The peer review of 2011 of the Press Law No. 5187 recommended amendments to the press
law including a strong public interest clause protecting journalists and publishers to report on
and publish matters of legitimate public interest.
The third judicial reform package did indeed bring amendments to Article 19 of the Press
Law with regard to compromising the judicial process and the time limit for a law suit by
legal amendment of July 2012. Article 19, which had foreseen high fines for publishing
material about proceedings of an inquiry or comments about the judge before the case is
concluded has been abolished.10
However, the fourth and fifth judicial packages on freedom of expression did not touch on the
press law at all. According to statistics provided by the Bureau for Investigation of Press
Crimes in the offices of the Chief Public Prosecutor of Istanbul, there were 604 investigations
until 9 May for 2014 of which 96 were concluded with an indictment. 23 cases concerned
publications revealing the identities of victims of sexual offense or victims below the age of
18, while the other 73 concerned offences such as insult, slander, attempts to influence a fair
trial or violation of confidentiality regulated in the Turkish Penal Code. Although this shows
that the majority of cases does not lead to indictments, the number of cases brought in four
months for Istanbul alone shows that there is still a high number of investigations, which by
themselves can already have a chilling effect on freedom of expression.
The Committee to Protect Journalists, in April 2014, has addressed an open letter to the Prime
Minister to ease the heavy pressure on traditional and online media. While recognizing the
release of journalists, it deplored that violations against the Turkish Press have increased in
recent months and that the media environment in Turkey became increasingly repressive.11
Accordingly, although there have been some positive developments, in particular in the
practice, there appears still to be a need to reform the press law.
10
11
See Law No. 6352 of 2 July 2012, Art. 105.
See Committee to Protect Journalists – Open Letter to Prime Minister Erdogan, Turkey should revise
all anti-press measures and laws, 9 April 2014.
10
B. Law on the Establishment of Radio and Television Enterprises and their Media
Services (new Broadcast Law)
The previous Law No. 3984 on broadcasting foresaw the possibility of sanctions on
broadcasters for a wide range of violations. There have been complaints on its implementation
by RTÜK as limiting freedom of expression. The peer review of 2011 also in this case has
proposed the inclusion of a strong public interest clause allowing to favor the broadcasting of
matters of legitimate public interest also in cases of otherwise questionable material.
In March 2011 the new law came into force as a successor to the former broadcasting law. 12
In Article 8 it contains a long list of media service principles, which mainly consist of
prohibitions, which include human dignity and the principle of privacy, but do not refer to the
requirements of freedom of expression. There is also no public interest clause. With regard to
the obligation not to act “contrary to the national and moral values of the society, general
morality and the principle of family protection (Article 8f)”, statistics were provided
according to which in 2013 18 warnings and 14 pecuniary fines were given by the competent
board of RTÜK. However, altogether the number of sanctions for the period 1 January 2013
until 31 March 2014 was much higher, which would indicate a close monitoring of other
principles and obligations.
According to Article 7 of the Law 6112, the Prime Minister or respectively appointed
Minister can impose a temporary ban if “evidently required by public security or in situations
where it is highly likely that the public order will be seriously disrupted”. Such sweeping
powers, although they can be brought to the Council of State for review, raise also issues of
the freedom of expression as the existence of such provision may already have a selfcensorship effect on reporting on matters of public interest. It has been criticized that the
mainstream media were slow in reporting about the Gezi Park Events, which resulted in a loss
of confidence with the public.
Accordingly, the Law 6112 should be reviewed with regard to the practice of sanctions and its
emergency provision.
C. Internet Law
The application of the law on the regulation of publishing in the internet environment and the
combatting of offences, committed through such publication (the internet law) No. 5651 of
2007 has been characterized by the peer review in 2011 as internet censorship, which goes
beyond what is necessary or proportionate in a democratic society leading to the conclusion
that the law should be abolished or revised. Furthermore, it has been recommended to make
higher courts responsible and include a strong public interest clause to better protect
journalists, bloggers and other publishers.
12
Law No. 6112 on the Establishment of Radio and Television Enterprises and their Media Services.
11
However, the amendments made to the internet law in February 2014, although modified on
the request of the Turkish President go in the opposite direction by enlarging and
strengthening the instruments of control. New paragraphs added to Articles 4 and 5 require
content and hosting service providers to furnish the Telecoms Communication Presidency
(TIB) with any information it may demand and take such measures as directed by TIB.
The amendments by a new Article 6A foresee the establishment of a “union of access
providers” with obligatory membership of all internet access and service providers. The
hosting providers are further committed to retaining all traffic information concerning their
services for at least one year (Article 5, para. 3). Due to an amendment requested by the
President as a condition for his signature, requests for this information by the presidency now
require to be demanded by courts with regard to criminal proceedings. Compared to the EU
data retention obligation, which recently has been found in violation of the Charter of
Fundamental Rights of the EU because of a lack of principles for limitations and of
proportionality, the internet law does not contain any such elements either and therefore does
not meet European standards as defined by the Court of the European Union.
In partial response to the case Yildirim v. Turkey.13 Article 8, which foresees the possibility of
blocking measures for violation of the eight public crimes identified, has been amended to
provide that the decision on denial of access may also be issued for a specific time period but
only if this serves the intended purpose. Also the sanction of prison sentences has been
changed into monetary fines.
Article 9 provides a procedure for persons and entities, who assert a violation of their
personal rights by a publication on the internet. They can request from the provider to remove
the content. The provider has to respond within 24 hours or apply to a criminal court judge,
who should give a decision within 24 hours. Again, the amendments take Yildirim hardly into
account when the removal of content or denial of access based on complaints for violation of
personal rights according to Article 9 shall now be limited to the – part of – the content,
which has occasioned the violation and that total denial of access shall not be decided by the
judge except if it is convinced that a lesser interference would not be sufficient in which case
the reasons need to be specified.
A new Article 9A has been added on “confidentiality of private life” allowing persons, who
claim that their right to privacy has been violated by any publication on the internet to apply
directly to TIB with a request for denial of access to the content. Access providers are
informed by TIB through the “Union” and have to carry out the request within a maximum of
four hours. In urgency cases, the President of TIB can give direct instructions through the
presidency, which need to be sent for approval to a criminal court judge within 24 hours who
has 48 hours to decide. The person demanding the blocking has to seek confirmation within
24 hours from a criminal court judge, who has 48 hours to take its decision and send it to TIB,
which has the right to make objections based on the criminal procedure code.
13
See Ahmed Yildirim v. Turkey, Appl. No. 3111/10, Judgment of 18 December 2012.
12
This procedure does not spell out any rights of the persons or providers affected by the
decision of denial of access, like the internet or content providers, the Union, or the owners of
affected websites. It is left unclear, whether and by which procedure they have the right to
challenge the decision of the judge. Article 6A, para. 8 provides only for a possibility of
objection of the Union against decisions sent to it without spelling out any procedure.
Therefore, not only does the internet law show a preference in the balancing of the right to
privacy versus the freedom of expression in favor of the former, it also entrenches this
preference in a procedure, which does not provide equal rights for both sides. This, however,
raises an issue of the right to fair trial, first, because all decisions are taken within very short
deadlines without rights of the defense like a fair hearing according to Article 6 ECHR. No
special urgent procedure is foreseen to challenge these decisions and the appeal can be
launched only in accordance with the general rules. Therefore, there is a need to bring the
procedure in cases of Article 9 and Article 9A into conformity with European standards based
on the ECHR.
Furthermore, another important finding of the European Court of Human Rights in Yildirim,
regarding the legality and foreseeability is not sufficiently met as many details of the internet
law are left to further executive regulation. The Court also requests a strict legal framework,
which would include a balancing obligation to determine the proportionality of restrictive
measures and it saw the powers of TIB already as “extensive”. However, these powers have
substantially been further increased although some judicial requirements have been added in
the last round of amendments. Accordingly, there is a need to review the powers of TIB as
well as the question of the requirement of a strict legal framework, whether they are in
conformity with the case law of the European Court of Human Rights.
D. Twitter and YouTube Cases
At an electoral rally in Bursa on 20 March, the Prime Minister threatened “to wipe out twitter,
regardless of what the international community says”. A day after, on 21 March, the
Telecoms Communication Agency (TIB) issued a decision on blocking Twitter, which has
been the most controversial decision regarding access to the internet in Turkey so far, because
the total ban affected millions of people. The explanation given by TIB was that it was acting
on several court decisions and it had been technically impossible due to the lack of
cooperation from Twitter to block certain incriminated accounts.
The measure was heavily criticized in Turkey, starting from the state president and abroad, for
example by the OSCE Representative for the Freedom of the Media. A large number of
tweets, however, circumvented the ban, which thus was hardly effective.
On 2 April, the Constitutional Court, based on three individual applications and by an
urgency procedure, unanimously decided a closure of Twitter by TIB to be a violation of the
constitutional rights of the applicants and order TIB to eliminate the violation. It also argued
that blocking access to a social media sites restricts freedom of expression. Also the effect on
13
democracy in view of the local elections on 30 March were noted. It further referred to the
jurisprudence of the European Court of Human Rights and made reference to the principle of
proportionality. TIB complied with the decision, which, however, was criticized by the
Minister of Justice for not following all procedures. Although the ban on Twitter was not
based on the amendments to the information law, it shows the strong role of TIB and raises
doubts as to its autonomy.
Also the ban on access to YouTube of 27 March 2014 was based on a court decision, with
regard to the law on crimes against Atatürk and Article 8 of the internet law, but implemented
by an administrative decision of TIB, allegedly after YouTube refused to take down the
incriminated URLs. A later court decision on a partial lifting of the ban seems not to have
been followed by TIB, allegedly to keep YouTube under pressure to comply more fully.
Again, it was the Constitutional Court, which on 29 May 2014, based on three individual
applications, decided that there had been a violation of individual rights and of freedom of
expression.
Accordingly, the conformity with the right to freedom of expression was re-established in
both cases by the Constitutional Court, who has thus demonstrated that it is taking this new
mandate of deciding individual applications in line with the ECHR seriously. This should
allow the authorities like the TIB, but also TCTA to bring their practice in conformity with
the right to freedom of expression as interpreted by the European Court of Human Rights.
They should be aware that much confidence has been lost by the blocking decisions and that
the reputation of freedom of expression in Turkey has been damaged on the national and
international level. Therefore, it would be necessary to rebuild the trust by reforming the
internet law accordingly, bringing it in full conformity with the right to freedom of expression.
The use of social media, like Twitter, by demonstrators, has led to a number of cases, known
as “Twitter cases” before a court in Izmir, which give reason to concern. It seems that the law
on demonstration is being used to restrict the freedom of expression. However, the freedom of
assembly and the freedom of expression are closely related and therefore the freedom of
expression needs to be taken into account together with the right to assembly.
I.6. New Remedies of Relevance for Freedom of Expression
A. Individual Application to the Constitutional Court
The individual application to the Constitutional Court was adopted in 2010 and came into
force on 23 September 2013. It has been introduced to serve the role of an effective domestic
remedy and thus to reduce the number of violations found by the ECtHR. Anyone, who
considers his or her rights under the ECHR and the Turkish constitution violated, can apply.
In this context, it is of importance that according to Article 90 of the Turkish constitution as
amended in 2004, the provisions of international agreements concerning fundamental rights
and freedoms like the ECHR shall prevail.
14
In the Twitter and YouTube cases, the Constitutional Court has indeed found a violation of
freedom of expression, which has been accepted, although with criticism, by the concerned
governmental agency, the TIB, and the government. This shows that the decisions of the
Constitutional Court in these cases have indeed served as an effective domestic remedy.
However, somehow similar to the ECHR, the Constitutional Court could become a victim of
its success. Since September 2012 it has already received 16,500 cases and although it has
reorganized its structure and working methods it is only able to decide around 200 cases per
year. This raises the issue whether in the case of delays the ECtHR might consider the
individual application as ineffective, because justice delayed is also justice denied.
B. The Ombudsman Office
The Ombudsman Office has been established in 2012 and started its activities in March 2013.
It can receive complaints and reports to a joint committee consisting of members of the
Committee of Petitions and the Committee of Human Rights of the Parliament.
Until May 2014, it has already received some 10,000 complaints, which are distributed
according to 20 topics identified between the five Ombudsmen, who support the Chief
Ombudsman. So far, there were only few complaints regarding issues of freedom of
expression, which could be partly due to a lack of awareness, given the high number of
complaints in other fields. In particular, no complaints had been received from journalists or
the media. Partly, this could also be due to the limited means of the Office in addressing the
complaints.
One field of relevance was the rules on Access to Information, which are to improve access to
personal information by the administration. Furthermore, the Ombudsman Office is
publishing reports on major issues of concern like a comprehensive report on the Gezi Park
events with recommendations which was due in the beginning of June 2014 and a May days
report on the events in beginning of May 2013.
C. The Human Rights Institution
The Human Rights Institution has also been established in 2012 and started operating in 2013.
It seems to have had a slow start and to be less operative than the Office on the Ombudsman.
It aims at being recognized as the Turkish national human rights institution in the future,
according to the Paris principles of the UN. As it is still building up, an application has not
yet been made.
The Human Rights Institution can also receive applications or complaints and is in a process
of awareness raising in this regard. So far the topic of freedom of expression did not play a
role as applications are received mainly from prisoners. It also plans to issue a report on Gezi
Park events.
15
The Human Rights Institution was involved in the Action Plan on Prevention of ECHR
violations and thinks of proposing on “Action Plan on Human Rights”. It is also involved in
human rights education and awareness raising. Prosecutors and judges have been identified
together with public officials for training activities.
The development of this institution remaining to be seen, there is an obvious need of
coordination with the Ombudsman Office and to make the public more aware of the potential
of the new institution, which could also be relevant for freedom of expression.
I.7.
Capacity-Building Efforts on Freedom of Expression
The strengthening of freedom of expression is not only a matter of bringing laws in
conformity with the obligations under the ECHR as interpreted by the European Court of
Human Rights. Of similar importance is to create awareness and to adjust the practice by
application of the Convention in the daily procedures and routines.
For this purpose, the EU and the Council of Europe as well as others have engaged in a
number of training activities as well as study visits to Strasbourg and other places. On the
Turkish side these activities have been mainly undertaken by the Ministry of Justice and the
Justice Academy as well as the High Council of Judges and Prosecutors, but also the Bar
Association, involving significant number of participants.
For example, a project on freedom of expression and media in Turkey was implemented by
the Council of Europe between 2012 and 2014, with a number of Round Tables and study
visits, which involved 370 and 75 judges and prosecutors as well as academics respectively. It
is to prepare also a commentary book to explain the case law of the European Court of
Human Rights, but also the domestic law and case law of High Courts. Three other projects
focusing on raising awareness about freedom of expression in the judiciary were implemented
or are planned by the Justice Academy.
Such activities are highly relevant for the development of awareness and proper application of
the law in conformity with the right to freedom of expression. In several meetings, judges and
prosecutors showed that they had benefited from this experience, which had increased their
knowledge and was taking into account in their practice. An evaluation of the impact of these
projects is under way. Some concern is raised by the recent numerous transferals of judges
and prosecutors to other positions. This also affected the Justice Academy, which also was
restructured. It might well be that this had negative effects on the capacities built by the
various projects before.
In addition to training programmes there is still a need for well-designed teaching materials.
However, there should also be more effective coordination of all activities in order not to
duplicate work like the translation of the judgments of the European Court of Human Rights
16
and to better share the work undertaken. Translation of Court decisions on Turkey as well as
their publication and distribution is the responsibility of the Ministry of Justice. As there is a
number of actors in the field of freedom of expression, activities should be undertaken for all
of them including lawyers, journalists and civil society. It would also be useful to organize
training events bringing the different actors together to help overcome the growing
polarization. The Bar Association might be able to serve as a platform for such events. Also,
with the establishment of new institutions like the Ombudsman Office and the Human Rights
institution, they should be involved in such training activities as well.
I.8. Conclusions
Since 2011, there have been important positive developments in the legislative framework
related to freedom of expression as well as visible efforts by most governmental actors, in
particular the Ministry of Justice and the Ministry of European Affairs to address the open
issues like by the elaboration of an Action Plan on Prevention of ECHR Violations. More
attentions to the case law of the European Court of Human Rights regarding freedom of
expression can also be observed with the judiciary. New institutions have been established for
the protection of human rights and new remedies created like the individual application to the
Constitutional Court.
Most importantly, the number of journalists in detention has dropped significantly and in
defamation cases hardly prison sentence are given anymore. Cases based on Article 301 TPC
or the Atatürk Law against journalists have been reduced. Trials were suspended and
restrictions on publications lifted. The Kurdish language can be more freely used. Special
Anti-Terrorism Courts were abolished. Opportunities for education and training activities on
freedom of expression for judges and prosecutors were created and used.
However, it appears that since the May 2013 demonstrations and the Gezi Park events as well
as the corruption allegations against members of government the dynamics of reform in some
areas has slowed down if not partly been reversed. But the positive changes observed will
only be lasting if the reform process is gaining new momentum again. A number of issues
identified already in 2011 still wait to be addressed. The speedy implementation of the Action
Plan on Prevention of ECHR Violations has to be a first priority, but more reforms are needed
than indicated there and on a faster pace, if freedom of expression is to be brought up to
European standards.
The judicial reform packages have brought important improvements, but they stopped short of
attacking the main problems, which need more fundamental reforms. On the same lines the
Representative for Freedom of the Media of OSCE in a speech at the Rule of Law
Symposium in Istanbul on 9 May 2014 has called for a “long overdue, thorough reform of the
laws that govern freedom of expression and media freedom”. She also emphasized the need to
clear the law from ambiguous or vague definitions. Indeed, such vagueness reduces the trust
into the law as it can always be used in restrictive ways against freedom of expression. For
17
example, the European Court of Human Rights has found that Article 301 TPC is excessively
broad and vague, but no changes have been made so far.14
The evolving practice of the Turkish judiciary as described during the peer review mission
gives the impression that the practice in some respects is ahead of the laws, which proves that
certain provisions and threats contained in the law are not needed anymore.
The downgrading of the press freedom in Turkey by Freedom House from “partly free” to
“not free”15 has been very critically commented by the Turkish interlocutors, who on the other
side admitted that the media were slow in reporting on the Gezi Park protests in May 2013.
Freedom House also explains that pressures to fire journalists or make them resign after
reporting on sensitive issues like corruption allegations and the fact that the Turkish Prime
Minister himself has intervened with the media were the reasons for such deterioration.16
These facts were not disputed in talks the peer review mission had at the Directorate General
of the Prime Minister for the Press and Information, but it was explained that some journalists
had resigned on their own will. This might be the case, but seems to have been motivated by
the desire to maintain their professional integrity.
There is no doubt that Turkey is a democracy. But as free speech is the oxygen of democracy,
the quality of the democracy also depends on how freedom of expression is experienced by
the citizens in general and the media in particular. In this respect, the Turkish legal
environment together with the insecure working conditions of journalists, who are hardly
organized in unions, and oligopolistic media ownership structures still gives the impression of
a repressive system resulting in intimidation and self-censorship of the media, which is a
challenge for the development of the democracy. Media increasingly appear to focus on
entertainment and apolitical content instead of putting more emphasis on public interest
programmes and news reporting. Investigative journalism is under threat. The general
impression is that governmental control of the media is increasing. The situation is aggravated
by a large polarization in society which affects also the media.
In this situation, the so-called “new media” as in particular the social media have gained in
importance and it is a matter of concern that the government is trying to increase its control
also of this media. The amendments to the information law and the indiscriminate bans on
Twitter and YouTube strengthen this impression as do criminal cases against Twitter users.
Also the new data retention obligation goes in this direction. There are fears that the planned
amendments to the Press Law to include online news platforms and internet journalism might
also be used to strengthen control. There seems also to be a lack of transparency in the
14
15
16
See Altug Taner Akcam v. Turkey, Appl. No. 27520/077, judgment of 25 October 2011, para. 93, where
the Court speaks of Article 301 as “a continuing threat to the exercise of freedom of expression”,
because of its vagueness.
See Freedom House, Press Freedom Report 2013, according to which the score of Turkey
deteriorated from 56 to 62 points on a scale of 100.
See Karin Deutsch Karlekar, Project Director of „Freedom of the Press“, Why is Turkey’s Media
Environment Ranked „Not Free“?, at http://www.freedomhouse.org/blog/why-turkey-mediaenvironment-ranked-not-free.
18
elaboration of the data protection law, which could interfere with freedom of expression. The
rules on access to information should also be clarified and made better known.
The enlargement of the powers of secret services and the strengthening of their immunity
together with the high fines for journalists reporting about vaguely defined state secrets must
have a chilling effect on any investigative journalism. A chilling effect on freedom of
expression, if not on the administration of justice in general can also be expected from the
numerous transferals of judges and prosecutors to other positions.
In conclusion, the progress made by the judicial reform and democratization packages and
other efforts appear to be at risk in view of recent tendencies to invigorate the control over the
media and to extend it also to the new media on the internet.
I.9.
Recommendations
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In spite of significant improvements in law and practice towards freedom of
expression, some concerns of the past still need to be addressed for which purpose the
Action Plan on Prevention of ECHR Violations can be usefully employed. However,
the momentum needs to be accelerated again.
Structural problems need to be addressed like media ownership structures or poor
working conditions of journalists contributing to a general climate of intimidation and
lack of public interest reporting
New legislation should be elaborated in a transparent way and by consulting all
relevant actors; the increasing practice of package bills does not allow for a proper
legislative process and should therefore be avoided.
Autonomous institutions need to be seen as independent and therefore need to act
independently from the government.
The freedom of the social media and other new media like online information
platforms as major instruments of freedom of expression needs to be better protected.
The number of possible interferences with freedom of expression and the work of
journalists in the existing legislation needs to be reduced.
In balancing freedom of expression with other rights the public interest function of the
media and the principle of proportionality should always be taken into account.
In determining the legitimacy of interferences with the freedom of expression, the
principle of necessity in a democratic society corresponding to an urgent social need
has to be taken into account.
While the suspension of trials is a move in the right direction, care has to be taken that
reformed legal provisions benefit those indicted under previous legislation.
In order to meet the requirement of clarity and pre-visibility, laws should not contain
vague or ambiguous provisions, which therefore need to be made more precise by
legal reform.
19
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Measures should be undertaken to strengthen the independence of the judiciary;
governmental criticism of the judiciary should be avoided and separation of powers
respected.
The welcome new remedy of an individual application to the Constitutional Court
must not lead to undue delays in dealing with complaints regarding the ECHR, which
could amount to a denial of justice.
Particular support should be given to independent institutions, like the Bar Association
Efforts should be made to increase public awareness of the newly created Human
Rights Institution and the Ombudsman Institution. There is an obvious need to
enhance cooperation between the two institutions, which tasks can overlap.
Efforts need to be made to overcome the polarization in the media and in society.
Freedom of expression and freedom of assembly are closely related. The law on
demonstrations must not be used to restrict freedom of expression.
Efforts should continue to offer training and expertise with the work of the ECtHR
and relevant institutions in other European countries on freedom of expression.
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Section II written by Prof. Dr Katrin Nyman-Metcalf17
II.1.
Executive Summary
The importance of internet and social media is growing and there have been recent changes
to legislation like Law 5651 on internet. Pending amendments to the Press Law would allow a
possibility for websites to be seen as mass media in the legal sense with benefits (press cards
for contributors, eligibility for official advertisements) but also responsibilities. Regarding
internet content the Telecommunications Presidency (TIB) has the power to ask for content to
be taken down or to block it, based normally on court decisions. Recent changes include the
creation of an Association of Internet Providers, to act as a counterpart for discussions with
the regulators concerning notice and takedown of unsuitable internet content.
The most famous instances of cases on internet content concern bans on access to Twitter
and YouTube. After the Constitutional Court ruled against the Twitter ban, there has been
some progress with the regulatory authorities entering into a dialogue with the providers and
looking at more limited measures. It is not in line with freedom of expression to block such
important channels for debate and information and these measures were disproportionate.
The role of regulatory agencies like TIB, the Radio and Television Supreme Council RTÜK
and the Information and Communication Technologies Authority BTK is important as such
agencies have an increasingly important role due to convergence, liberalisation, new media,
etc. Regulators must operate with maximum transparency, applying principles such as
proportionality and necessity. Turkey has modern regulatory agencies but there is room for
improvement as far as the independence from the Government and transparency is concerned.
The media ownership situation is highly problematic and there are no ongoing reforms.
Owners - large conglomerates, subject to political pressure through dependence on public
contracts in other areas of the economy – interfere in editorial freedom. Editors and
journalists fear this and exercise self-censorship. There is an absence of specific legislation
on media ownership and thus no effective tools to deal with this. The problems are
exacerbated by a lack of transparency on media ownership and lack of mechanisms to identify
real (including indirect) ownership. The digitalisation process, handled by RTÜK, is under
way but has been delayed by legal challenges to tenders, instigated by existing powerful
media owners. The entire process may need to be redone, either a new tender process or a
new method of licensing.
A different area of concern is working conditions for journalists, with lack of job security,
difficulty to get the press card which is issued by a government body and no proper
application of labour legislation. In such a situation there is a high level of self-censorship.
There is no system of press (media) self-regulation and codes of ethics are not applied in any
Prof dr Katrin Nyman-Metcalf, Professor of Law and Technology, Tallinn University of Technology, Head
of Research e-governance Academy, an independent expert
17
21
consistent fashion. The polarisation of the media (as of society) means that there is no
realistic outlook for a self-regulatory system.
II.2.
Introduction
The main issues of interest for the study identified and reflected in the Terms of Reference
included:
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The Penal Code (and other relevant legislation) concerning defamation, obscenity,
offences against public order or state security, support for criminal organisations,
influencing trials, breaches of confidentiality, matters related to disclosure of
information
Article 301 of the Penal Code on insult of the Turkish nation - subject of many
complaints in the European Court of Human Rights - and the Law on crimes against
Atatürk
The Anti-terror Law and cases under this law against journalists
The Internet Law and possible restrictions to internet through this law
The activities of the judiciary, its independence and quality including its willingness
and ability to apply principles of the European Convention on Human Rights
(proportionality, necessity in a democratic society of any restrictions to freedom of
expression)
The functioning of regulatory agencies, including their independence and efficiency
and whether they support or hinder media freedoms (including on the internet)
Imprisonment of journalists for defamation, terror offences or for other reasons as well
as suspended sentences and the potential chilling effect this has on freedom of
expression
Poor working conditions and absence of job security of journalists having a negative
effect on freedom of the media
Ownership issues, especially the concentration of media ownership in large
corporations with widespread business interest and the influence owners have on
media content
Self-regulation and media ethics
The mission confirmed that these points are indeed of interest. It is essential to look at
implementation of the law, as the recent legislative changes – which are positive – must also
be reflected in practice. Principles expressed by the European Court on Human Rights
(ECtHR) such as proportionality, necessity in a democratic society and legal basis for any
limitations of freedom of expression must be applied not just by courts but also by regulatory
authorities and any other organs that apply laws and regulations. In addition to this, the
mission confirmed that many of the problems of the Turkish situation for freedom of
expression and more particularly freedom of the media are due to the polarisation and
politicisation of society as well as of media; mistrust between government and opposition and
the media of the different fractions; lack of independence or at least of the perception of
22
independence of regulatory agencies; and other such factors that are difficult to pinpoint
exactly or to quantify.
As additional issues of interest that were not explicitly set out in the Terms of Reference,
legislation on state secrets as well as legislation on data protection turned out to be of interest,
as it appeared such legislation in some instances is used to limit freedom of expression – or
could potentially be used in that manner. Freedom of expression includes the right to impart
as well as to obtain information. At the same time, privacy is protected under the European
Convention of Human Rights (ECHR) as well as under the European Union (EU) Charter on
Fundamental Rights, which also contains an explicit clause on data protection. Thus, the need
for a careful and proportionate balancing of rights is essential.
On the positive side it can be mentioned that a number of taboos in Turkish media have
(almost) been lifted recently. This includes the use of Kurdish language in media and the
discussion on Kurdish issues as well as matters related to the Armenian question. All
interlocutors agreed that it is now possible to discuss these issues in a more open fashion than
only recently, although we also experienced that certain things like the use of the word
“genocide” in relation to the Armenian issue is still sensitive.
It was pointed out by many commentators that there is a high number of newspapers as well
as of influential columnists in Turkey that are in opposition to the Government. Although this
may be over-interpreted as a sign of plurality and diversity, it is true that it shows a media
landscape that allows some freedoms.
II.3.
Developments to the Penal Code and Anti-terror Legislation
A. The Penal Code
There have been a number of recent amendments to the Penal Code (and other relevant
legislation), which should support freedom of expression. However, the implementation of
the provisions remains to be seen. Some interlocutors said that the judiciary in general is not
supportive of freedom of expression and would tend to interpret provisions in a restrictive
manner. This was contradicted by representatives of the judicial sector who instead pointed to
efforts to incorporate principles of the ECHR.
Turkey has been the subject of many complaints in the ECtHR and has been found in
violation of the Convention on numerous occasions. Cases have been in relation to
convictions under the Penal Code for offences insulting Turkishness but also regarding
convictions under the Anti-Terror Law. Recent legislative amendments go in the direction of
lessening the situations where people can be convicted in violation of the ECHR but whether
these changes will be sufficient will primarily be shown through practice. There are various
attempts to ensure that the judiciary and others concerned are familiar with ECtHR case law
and take the principles expressed in it into account.
Regarding defamation, there are constantly many cases brought by politicians, including the
Prime Minister. This indicates that public figures have not accepted the principles of the
ECtHR about politicians and others in the public eye having to accept more scrutiny and
23
criticism by media.18 The prosecutors as well as judges we met pointed out that many such
complaints are not pursued, including complaints by the Prime Minister. They insisted that
they operate independently and are able to dismiss complaints from the highest political level,
based on an independent evaluation of facts. If there is defamation of the person rather than of
political decisions it can be a case worth pursuing – not if it is part of a political debate. There
is no reason to distrust these statements per se and it does appear that there are fewer cases on
defamation by politicians, but the number is still higher than what should be the case in a
democratic society with freedom of expression. Politicians, public officials and other public
figures should refrain from making complaints and the courts should signal this by being very
restrictive regarding what complaints to pursue. The special press prosecutors underlined that
they have never brought charges based on their own monitoring of publications (which covers
publications printed in the respective jurisdictions of the prosecutors) but just on complaints,
but nevertheless having special prosecutors with a mandate to monitor printed publications
can send a signal that publications must be cautious with what they print, which may lead to
self-censorship.
Our interlocutors informed us that one reason for the perception of many cases of defamation
is that due to a short statute of limitation for defamation investigations are started more or less
immediately if there is a complaint without time for a preliminary investigation. In any event,
the Press Judges suggested this fact could be behind allegations of many cases against
journalists; they confuse the opening of an investigation with an indictment. The judges were
eager to stress the high proportion of investigations that have as their conclusion that no
indictment is made.
As a relatively new risk it was mentioned that there has been an increase in blasphemy cases.
We did not manage to get much information about such cases and it appears that there may
not be so many, but those that have been brought have been against well-known persons and
thus have attracted attention.
B. Article 301 of the Penal Code: Insulting “Turkishness”
Article 301 of the Penal Code is proposed to be amended but this has not been done yet. It is
an open question if it will be amended or abolished. The legislation is still used quite
frequently and means a restriction on freedom of expression that may be difficult to properly
predict, thus lessening legal certainty and having a chilling effect.
C. Anti-Terror Legislation
The amendments to the Anti-Terror Law should make it more difficult to use this against
journalists by stipulating that propaganda will not be punishable if it does not include
encouragement to violence. It is too early to say if this improvement will be seen in practice
as the terms used are open to interpretation. Some commentators pointed to risks that such
legislation would instead be used more, as it still permits wide interpretations of the crimes it
18
As famously elaborated in the Lingens case for example.
24
includes. The link to the National Intelligence Services Law and the opportunities to use this
Law to hinder publication of certain information was brought up in this context. Generally,
commentators from media and civil society were sceptical about the changes and pointed to
the possibility of indictment for terrorism offences still hanging over journalists as a threat
and as something that induces to self-censor sensitive topics.
II.4.
Imprisonment of journalists
One of the positive recent developments is that there are fewer journalists imprisoned, none
on defamation and fewer on terror offences or for other reasons. The assessment of this varies
widely between different interlocutors, which is due both to issues of definition of who is a
journalist and of what crimes are seen as linked to journalistic activities. In any event, an
improvement can be seen but there remain possibilities to imprison journalists on spurious
grounds, if the judiciary does not fully respect freedom of expression.
Turkey has a special prosecutor for Press Crimes. Such crimes include various matters related
to publications in the media like revealing the identity of victims of sexual offences or of
underage persons as victims or perpetrators of crimes. Relatively few cases concern matters
under the Penal Code such as insult, slander, attempting to Influence a fair trial or violation of
confidentiality. Only a small proportion (about 15%) of matters investigated are pursued. This
was presented as evidence of the freedom of the media. Although it is positive that there are
no excessive investigations of offences committed by the media, it is difficult to draw too
many conclusions from these figures as it is a complicated web of factors that affect how free
media is: how much editorial freedom there is, do journalists exercise self-censorship, is the
structure of media really diverse and so on.
II.5.
State Secrets and Data Protection
Data protection legislation is one way to express principles of protection of privacy – a reason
to restrict freedom of expression. There are some variations between European countries on
the exact systems for data protection. Provided the restrictions are set out in law and are
applied in a proportional manner to the extent that is necessary in a democratic society the
ensuing limitation to freedom of expression is in line with best European practice. The
independent monitoring of data protection by independent organs is a feature of the European
data protection landscape. Turkey lacks data protection legislation, although a constitutional
principle was introduced in 2010, but a draft law is in the process. The independence of the
proposed agency was questioned by commentators as supposedly it is to be created by
Government. This was giving rise among civil society representatives to fears that data
protection may be used to unduly restrict freedom of expression. It is to be hoped that the
system created will show such fears are not needed.
Fears were expressed that legislation on state secrets would be abused to silence journalists.
Some commentators even mentioned that this may be used to cancel out positive changes to
the Penal Code and Anti-Terror legislation, by finding leaking of classified information a
terror crime. It was mentioned by journalists that in cases of leaked classified information,
25
legal action is often taken against journalists and media outlets, including bans on
broadcasting, rather than against the officials that leak the information. The intelligence
service MIT is a powerful actor that can act without a court order and without any
transparency to requisition information from journalists or others, to monitor data and so on.
Access to information legislation exists, with strict deadlines for when information must be
made available. It appears as if the legislation mainly works, although if some material would
be deemed extra sensitive, including on political grounds, it may be isolated from the effect of
the law through the state secrets law, without due regard to necessity and proportionality.
II.6.
Application of principles of the European Convention on Human Rights
Turkey has been subject to a number of convictions in the ECtHR for various offences,
including defamation cases where the Court has found disproportional reaction including in
the form of suspension of licences by the regulatory authority RTÜK. Courts as well as other
concerned authorities are aware of the European case law and take measures to include it in
their decision-making just as also recent legislative changes go in the direction of
incorporating the findings of the Court. However, the effect of this will be shown by
implementation and there remains work to be done. It is difficult to get the impression of how
genuine the desire is to implement the ECtHR way of thinking. Some authorities and persons
appear genuinely willing to change practice so that the principles are incorporated whereas
others may be claiming to respect the verdicts without a genuine understanding or willingness
to adhere to the principles expressed through them. Given the number of cases against Turkey
and the number of convictions, it is clear that quite a lot of work must be done to turn around
this unfortunate situation. There has been a reduction of cases recently and it is to be hoped
this trend will continue.
The independence of the judiciary and its willingness and ability to apply principles of the
ECHR is a key issue. Many of the legislative changes that are positive may not have any
effect if the judiciary applies them in a restrictive manner. There have been some positive
changes in recent years, most notably the introduction of the possibility for individual
complaints to the Constitutional Court (since September 2012). The high number of
complaints and convictions in the ECtHR was an important incentive to introducing this
complaint procedure and it has proven to be very much used – for relevant complaints as well
as (inevitably) various less appropriate complaints, especially before the procedure has
become very well known.
During our mission we were told of several cases in Turkish courts where ECtHR case law
was explicitly referred to and used to support freedom of expression, for example in the
context of what criticism and scrutiny of public officials that should be allowed without
bringing convictions for defamation.
II.7.
Internet legislation and cases regarding Internet
26
Internet is primarily regulated by Law 5651 from 2007. This Law was amended in February
2014. An Association of Internet Providers was created at the same time (operational in May
2014), which will be the counterpart for discussions with the Telecommunications Agency
(TIB) and the Information and Communication Technologies Authority BTK.
TIB has the power to block internet content and ask for it to be taken down, in the manner
which is common in the EU and many other parts of the world. It is in addition possible for
the victim of e.g. defamation on the internet to sue the content provider, if the requisites for
the crime are at hand – irrespective of the notice and take-down procedure of TIB. TIB does
not monitor internet content but acts based primarily on court decisions that have found
content in contravention of laws or in some cases by itself based on complaints. There are
eight different offenses in Law 5651 regarding which TIB can react. Internet users are not
obliged to first contact the content or service provider to ask for a take-down, as it may be
hard for individuals to identify the proper party. However, for the agency asking for takedown is always the first step if it decides to act on a complaint. If that does not work,
individual web-site URL-s will be blocked if possible. TIB publishes why sites have been
blocked or content taken down, rather than just the regular “Error 404” message, so with this
they are more transparent than many similar agencies in other European countries.
Pending amendments to the Press Law would allow a possibility for certain websites to be
seen as mass media in the legal sense with benefits (availability of press cards for
contributors/journalists, eligibility for official advertisements) but also responsibilities under
press legislation. Such or similar actions are seen also in EU, as part of an attempt to clarify
definitions of various types of media, where existing definitions do not fit in the internet age.
The cases to ban access to Twitter and YouTube are worthy of criticism, as these bans were
disproportionate and are more worrying then the legal provisions. After the Constitutional
Court finding against the Twitter ban, there has been some progress with the responsible
regulatory agencies entering into a dialogue with the providers and looking at more limited
measures. Whether their approach in the future will be more proportional remains to be seen.
This is a question of implementation rather than legislative change.
The agencies stressed the creation of the Association of Internet Service Providers as a
positive step, as this gives a counterpart with which to discuss. TIB and BTK claimed that in
the Twitter case they had made several attempts to contact Twitter to make them take down
unsuitable content but Twitter had not responded. It is not possible technically to bloc
selected content on a site such as Twitter, which does not use URL but SSL, so the agencies
claimed there was no other possibility than blocking the entire site. Only after this was done,
did it become possible to communicate with Twitter and since then it has been possible to
take targeted measures. TIB and BTK did not criticise the Constitutional Court decision that
overturned their ban, but indicated that they had not been happy to take such restrictive
measures but they had no alternative. It is not possible to ascertain with any certainty to what
extent it is correct that there were serious but failed communication attempts. Also, it is not
the aim of this report to go into details of specific cases. It is quite clear that to ban the entire
27
Twitter or You Tube networks is disproportional. If there are difficulties to get serious
response from the relevant companies, more attempt must be made. It is not in line with
freedom of expression to stop such an important channel for debate and information as
Twitter (or You Tube). In weighing pros and cons of having some unsuitable content
available because of difficulties to get it taken down or closing an essential communications
channel, the decision must fall on the side of permitting the content – even if it legitimately
should be taken down if possible.
The question of how to react to unsuitable internet content is one that is discussed all over the
world, given that this medium does not fit well into traditional and established media
regulatory systems and it developed so fast that regulation did not keep pace. There is now an
ongoing discussion about how to avoid that internet becomes a lawless space while at the
same time maintaining its freedom. 19 However, even if the question on how to deal with
internet content may to some extent be open, it is clear that any restrictions to freedom of
expression need to be proportionate, necessary in a democratic society and based on law, just
like any limitations of human rights. In Turkey, the issue of proportionality of the bans on
internet content has not been well handled.20 Social media is very important in Turkey with
many users of Twitter for example. In the important Gezi Park events in 2013 social media
played a key role in helping to organise events and keep people informed about
developments. Several commentators hinted that this important role of social media such as
Twitter was a key reason for the harsh reaction to it – much more than the supposed reasons
of defamatory or otherwise unsuitable content. When traditional media becomes less
independent and more (self-)censored, it is social media that fills the need for a truly free
debate – as is seen in Turkey in recent years.
II.8.
The Regulatory Agencies
Regulatory agencies for communications everywhere have an increasingly important role with
convergence, liberalisation, the growing importance of social media and other trends. This
means that it is important that these agencies operate with maximum transparency, applying
principles such as proportionality and necessity just as courts do. Although Turkey has
modern regulatory agencies, based on European and international practices, there is room for
improvement, mainly as far as the independence and transparency of the agencies is
concerned. There are three main bodies for communications (plus a competition authority):
the Radio and Television Supreme Council RTÜK; the Information and Communication
Technologies Authority BTK; and the Telecommunications Presidency (TIB).
RTÜK is a regulatory agency, modelled on the European model of such agencies. It has just
celebrated 20 years of its existence and its creation more or less coincided with the
19
Recently, in May 2014, the Council of Europe published a Guide to how freedoms apply in cyberspace.
In the Yildirim case in the ECtHR the Turkish ban on Google sites was found disproportional and not
necessary.
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introduction of private broadcasting in Turkey. RTÜK is a member of the European Platform
of Regulatory Agencies (EPRA) and participates actively in this network. The Agency has
modern premises and is well equipped. As one of few regulators in Europe (including France
and Serbia) it aims to monitor all programmes, although in reality the monitoring is not quite
100%. RTÜK also handles complaints. It is moving somewhat more toward a complaintsdriven process but still sees the ex officio monitoring as essential. Sanctions start with
warnings after which fines may be imposed, suspension or cancellation of licence is rare.
RTÜK is set up under Law 6112 on Media Services, which incorporates the Audiovisual
Media Services Directive to a large extent. This Law was adopted in 2011 and replaced the
1994 Law that created the agency.
Some commentators criticised RTÜK for bringing an excessive number of cases based on
obscenity, having an unduly restrictive view on what is obscene or otherwise unsuitable.
However, this is most probably rather an expression of the polarisation of society also when it
comes to values than a deficiency in the work of the agency or direct political pressure. There
are large divisions in Turkish society on cultural and social values. RTÜK admitted that they
try to act based on what are the real concerns of people but that this is difficult, not least
because of the mentioned divisions. Moving from more ex officio cases to mainly reacting to
complaints should better reflect real concerns, but in a polarised society the concerns of some
will not be accepted by others. Decisions of RTÜK can be appealed to the Administrative
Court. If some decision is overturned, this is used as an indicator to not make similar ones in
the future and in the same way, the court´s approval of a decision helps to make it part of the
benchmarks that RTÜK makes for broadcasters.
The work of RTÜK is quite transparent even if there is always room for improvement on how
to make decisions and processes easily accessible to the public. However, for the BTK and
TIB there appears to be a need to operate under greater transparency as their working methods
are not easily accessible to observers. They do publish decisions in accordance with legal
provisions on this and have policies on transparency but several commentators claimed that it
is not easy to follow and understand their work. As they deal with notice and takedown of
internet content and as there is bound to be different views on whether to block certain
content and to what extent, with as much transparency as possible of the working methods,
the deliberations held, etc., speculation is minimised and it also makes it easier on appeal to
know what arguments to bring. The need to motivate any decision explicitly is also useful for
the authority as it concentrates the minds and can help to keep decisions proportionate. Legal
provisions on transparency may not be enough, if there is still a perception that the work is
not easily accessible, but policies of outreach may be needed. Freedom of expression on
modern media is a difficult balance in every country and it is essential that society
understands the actions of relevant authorities.
BTK and TIB stressed that they do not monitor internet content and only act on complaints,
often following court decisions finding content in contravention with laws. The agencies
maintain a hotline for complaints and normally engage in a dialogue with the content or
service provider to get content taken down. TIB, the responsible agency has legal as well as
29
technical experts on its staff: the first assess the complaints and see if there is reason to ask for
content take-down – the technical experts find out the owner/operator of the site (via open
sources) and assess possibilities to take down and/or block content in case the relevant party
does not remove it voluntarily. The agency was eager to stress that they do consider
proportionality in all instances and that the high-profile cases like the Twitter ban or the
reaction against Google in the Yildrim case were due to the relevant parties not reacting to
take-down requests.
In addition to emphasising transparency, it is important for the regulatory authorities to
increase their independence from the Government and strengthen also the perception of
independence. The Supreme Board of RTÜK for example is appointed by Members of
Parliament with a certain number of members that can be appointed by the majority and a
(smaller) number by the parliamentary minority. Although the qualifications set out in law for
the members are similar to those in many countries and the idea is that they should be
professional and act independently, the perception is one of politicisation. With a more
independent method of appointing the board it would be easier for them to explain their work
and avoid the suspicion that they are acting on political orders from any one side. The same is
true for the telecommunications organs.
In addition to the sector-specific agencies there is a Competition Authority in Turkey. It
appears to work well and in line with European standards, the law creating it (in 1997) is
based on EU standards. Competition law is an area of law, which is very similar all over the
world and especially between European countries.
It is currently under discussion in Turkey whether the Competition Authority shall also deal
with sector-specific issues.21 The Authority has appealed a decision that they should do so.
This discussion does not directly affect the main topic for this report and there are different
solutions in different European countries, so it is not possible to prescribe one solution as best
European practice. On the one hand, modern technological developments such as
convergence, digitalisation and others mean that competition authorities are getting more
competence also over e.g. media related issues. On the other hand, media still entails a need to
consider special issues such as media content, impartiality and plurality and so on. It has been
expressed that in competition law, people are customers – in media law they are also
audience, and the concerns and need of protection for one group are different than that for the
other. Currently the Competition Authority deals with quite a lot of cases that involve media
but are restricted to how they can act on these, for the above stated reasons.
II.9.
Media ownership
The ownership situation is problematic with no outlook for improvement in any near future.
Most interlocutors agreed that this is a major problem and an area where international
Currently they give opinions to RTÜK and discuss cases quite frequently, but leave sector specific issues
to the sector specific agencies.
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30
recommendations have not been followed. The problem is that powerful conglomerates own
all sorts of businesses, including media, and there are more or less direct links between
different areas of economic activity. The Government reportedly puts pressure on companies
to buy media outlets in exchange for other positive treatment like winning contracts for
construction or similar - it being understood that they will use the media outlets in a fashion
that is to the liking of the Government. In this way, the Government can ensure favourable
media treatment while still keeping the media outlets nominally at arm’s length. For example,
in order to get important public works contracts the owners of groups containing construction
companies as well as media do not want the media outlets to upset politicians or public
officials, for fear of this affecting totally different business prospects. The underlying problem
here is the lack of respect for editorial freedom. Pressure is exerted and even if it is not, there
is a real risk of self-censorship for fear of such pressure.
Legally there are currently no effective tools to deal with media ownership. The broadcasting
legislation contains some rules on media ownership but only concerning terrestrial
broadcasting, which leaves out many important channels in the modern media market, and
even these rules are rather permissive in that up to four media outlets may be owned for the
same territory. Only incorporated legal entities can own broadcasters and with no more than
50% of foreign ownership, however just relating to direct ownership. Although there is no
reason to doubt the professionalism of the Competition Authority its area of competence is
limited. It cannot normally act on cross-sectoral concentrations as this mainly does not fall
under competition law (in any country).22 Especially for evaluating and dealing with abuse of
dominant position, but also linked to agreements between undertakings, the definition of the
relevant market is essential. Dominance across different markets does not fall under
competition law. The work of the Competition Authority may have an indirect effect in that
media outlets avoid becoming so big that they are dominant in the sense of competition law,
which can be achieved by big groups owning many things designing suitable solutions.
There would be a need for specific legislation or other rules to prevent the kind of powerful
media groups that dominate the media landscape in Turkey. This would be quite a
complicated legislative task and currently there appears to be no initiatives. Quite the
opposite: we were told by several interlocutors that the Government and forces closed to it
have used leverage they have through various holdings and assets to actively interfere in
media ownership (including the most important news agency, Anatol). At the local level, it
has happened that mayors have forced closure of newspapers on spurious grounds like lack of
proper licences, in the same manner as for local restaurants or shops.
Our interlocutors confirmed that there are also media outlets in Turkey that are more
independent. It is not theoretically impossible to operate without being part of some important
Among media related decisions of the Competition Authority can be mentioned fines on newspapers for
anti-competitive agreements related to newspaper distribution, involving the main media groups. The
system of media planning agencies that deal with advertising distribution to (printed) media has also
been challenged under rules on abuse of dominant position, as it proved almost impossible for a new
entrant to enter the newspaper market (in 2008).
22
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group. However, such media outlets are of lesser importance and do not include any of the
outlets with the biggest reach. Instead, they have a “dissident” image and according to some
are allowed to operate without much interference to illustrate a falsely positive image of
media freedom in the country. Minority media (like for example Greek newspapers) are
among the few publications that are owned by journalists. They are often small with a limited
reach, but do enjoy editorial freedom and independence. Having been banned from receiving
support from the various public funds that exist, this has changed in recent years so the
situation for minority media has improved, even if the financial situation is often difficult
because of the limited market of the media. Even if funding possibilities in theory do exist,
there is still discrimination against minority media and some minority representatives also
mentioned that they resent that their greater freedoms and possibilities are presented as if it is
a gift to be grateful for, rather than a right.
Recognising that the problem of the ownership structure of media in Turkey is a major issue
and one which does not have an easy and quick solution is not a reason to avoid dealing with
it. Legal tools must be provided by special legislation, suitably sector-specific legislation.
There are precedents from different countries on legislation setting out special rules for media
ownership. In such legislation any appropriate bans or prescriptions can be made. It should be
carefully considered what issues need to be dealt with and the appropriate legislation should
be suggested.
The problems are exacerbated by a lack of transparency regarding media ownership. This
means that the reasons some issues may or may not be reported are not known, which leads to
speculation, lack of credibility of media and a difficult working situation for journalists who
may not know what is off limits and why. Officials in regions, towns and at other levels as
well as linked to central Government and in addition public officials and not just politicians
may be “protected”. Furthermore, business people with links to one or other owner may be
able to affect media content, for example making it impossible to investigate allegations of
corruption, lacks in safety standards, poor working conditions and so on.
Ownership rules must be able to deal with the real ownership and thus go beyond only the
surface, to include also constructions made to hide real ownership. There are many examples
from different counties, usually containing rules on how many percentage of ownership of a
legal person is to be regarded as ownership, if ownership by close relatives is to be considered
as well, etc. –designed to make special constructions to camouflage ownership as difficult as
possible. Also, the maximum transparency and accessibility to documents is important to deal
with the tangled web of ownership. If it is easily seen who is the owner of a media outlet, it is
possible to determine risks of undue influence and similar. Currently there are almost no
rules in media legislation, including the broadcasting law that give authority to regulators to
monitor media ownership. Even if regulatory decisions are published they are sometimes
incomplete, with reference to business secrets of the concerned parties.
In addition to the tangled web of ownership, there are allegations that tax legislation is
applied selectively as a tool for punishment of “uncomfortable” media – or as a reward,
32
through “tax forgiveness”. It was clear from our discussions that even if exact allegations of
risks and threats are by nature hard to evaluate, there is a climate of mistrust and suspicion.
Allegations voiced also include hidden influences on supposedly independent media from
those attempting to create or support the “parallel state”, especially the supporters of the
nemesis of the Prime Minister, Fetullah Gülen.
In this context a brief comment can also be made on digitalisation, which is handled by
RTÜK. The process of digital switchover is ongoing in Turkey but has suffered delays as all
four tenders for national digital platforms (and one of seven for regional ones) were cancelled
by the Administrative Court. Until now three of these decisions have been upheld by the
Council of State and one is pending. The Competition Authority is also conducting a formal
market inquiry that should be completed at the end of 2014. These factors may mean that the
entire process may need to be redone, with either a new tender process or perhaps a new
method of licensing. RTÜK is currently analysing the Court decisions. Speculation on why
there have been these obstacles to the process include that existing broadcasters are worried
about digitalisation and do not like it, as it disturbs there existing situation including their
existing dominance. They are not interested to make the big investments needed and at the
same time do not want others to come into the market in important positions in the changed
landscape of digital broadcasting. In any event, Turkey is aware of the necessity to deal with
the issue and to do it soon, so if it is not possible to do it via a tender, allocation through law
may be used to get the process started. There is a transition plan and although the date of 17
June 2015 that is set for the switchover may not be realistic, the delay should be as small as
possible. As a remark on this issue, it can be said that the process of digitalisation is complex
and delayed in many countries around the world. How exactly the launch is handled varies
even among EU members. It appears as if Turkey by and large is in line with the various
processes used in other countries, where there are various examples of ad hoc procedures and
involvement of different organs and processes than in other licensing matters. Maximum
transparency can be underlined also in this context.
II.10. Working conditions of journalists
It was agreed by most interlocutors that the working conditions for journalists in Turkey are
generally poor. The competitive environment and problems for traditional media with it being
out-competed by social media with many journalists losing their jobs, means that media
owners are not interested in improving the situation as they will have no problem to find
replacements for any journalists who leave (including because they are pushed out if they are
too “difficult”). Journalists who are fired often do not find new positions because of an
informal “blacklisting” and as many publications prefer untrained journalists, less likely to
cause trouble. Only about 1% of journalists are unionised so unions are uninfluential. There is
a lot of difference between the role and job security of different categories. Some very
influential columnists have very secure positions and can influence politicians, while a large
majority of journalists have insecure labour conditions and worry about not just political
pressure but also pressure from their owners.
33
There are under current Turkish law two legal possibilities to organise working conditions for
journalists: either under special conditions for journalists or under general labour law. In the
latter case, there is no concession for special conditions of journalist and there are less
privileges for them – the conditions are more at par with other professions while the working
conditions specific for journalists offer various more beneficial conditions. It appears as if
owners can decide which law to apply with their being no guarantee that the law for
journalists shall apply even to individuals who clearly are within the category of journalists.
In such a working situation it is not surprising that many commentators pointed to a high level
of self-censorship. Journalists fear for their jobs and the threat may be political or linked to
media owners or just to a fear of displeasing editors. To underline the precarious situation for
journalists, the important Press Card is issued by a government body, which is not in line with
best international practice. It is hard to obtain and presents a potential means of government
influence over who is regarded as a journalist. Even if there is a Commission23 consisting of
representatives of journalists associations and similar that deals with the cards, the fact that it
is under the auspices of the Prime Minister´s office – the Directorate on Press and Information
– means there is no perception of independence. This perception is not refuted by the
Commission having a membership of professionals, but there should not be any government
involvement in such a Commission.
The question of working conditions for journalists is complex to the extent that such
conditions partly are to be set by the media owners as part of their freedom to conduct
business. However, this does not mean that there are no considerations of a legal and human
rights nature linked to the conditions. Partly, this follows from accepted social and economic
rights that affect the organisation of the labour market. Perhaps even more importantly in the
particular case of media in Turkey, the conditions are negatively affected by some legal
provisions as well as by the ownership structure of the media market. There is a lack of proper
editorial freedom due to pressures of a mixed political-economic nature that means that media
owners operate based on other considerations than those linked to the media content.
Journalists risk losing their positions if they act outside of strict confines set for them and the
structure of the media market means that it may be nearly impossible to get new employment.
In the modern society and media environment, accreditation of journalists has lost a lot of its
reason for existing. Access to information should be a general access for all citizens,
regardless of purpose, so journalists have no special rights in this respect. Also when it comes
to access to debates and events, with so many important events being supported by on-line
material accessible for everyone, the accreditation also here is less relevant. With groups such
as bloggers, citizens journalists, social networking commentators and similar often having a
big audience and being an important source of information and news for many people, the
distinction between these groups and professional journalists becomes increasingly blurred. In
The Commission has 13 members from the largest journalists´ associations, trade union, professionals
in the media field and also 2 members from the Prime Ministers Directorate General for Press and
Information.
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such a situation it is not suitable to exaggerate the importance of accreditation and the special
status of certain journalists over others. In Turkey the situation is especially unfortunate, as it
is very hard to get the Press Card and with it the most coveted status as accredited journalist.24
It takes twenty years to get a permanent Press Card and any such card (also the temporary
ones) presupposes an employment contract with a media house. This means that young
journalists, free-lance journalists and other persons who may fit into the new categories of
media persons mentioned above are excluded from a document to which too much importance
is attached. There is thus a double problem in what has been said here: the Press Card is given
undue prominence and obtaining it is too difficult.
However, the main problem in this respect is how the Press Card is issued. Namely, this is
done by a Commission under the Prime Minister´s media department. This opens up for at
least a possibility for the Government to exert pressure by withholding or providing the
important Card according to political preferences. In any event, there is a perception that this
is the case and this alone can serve as a reason for self-censorship, not least given the difficult
labour conditions for journalists. We were told that it has got easier to get the Press Card, but
the restrictive rules still exist and can thus have a chilling effect even if perhaps practice has
got a bit more lenient on the demands made.
II.11. Media (Press) Self-Regulation
There is no system of press (media) self-regulation. Journalists´ associations have made codes
of ethics, but these are not applied in any consistent fashion although some newspapers have
their own ombudsmen, even if few and not too powerful (and growing less powerful). The
polarisation of the media (as of society) means that there is no realistic outlook for a selfregulatory system as different publications are not able to work together. Various elements of
real or potential political pressure on media mean that there is a high instance of selfcensorship of media. Journalists we discussed with told that it is possible to e.g. criticise the
government but only in a general and demagogic manner, not on specific issues. Such rules
and limitations are not necessarily set out anywhere but journalists and editors are well aware
of the limits within which they should operate.
Very many of our interlocutors, especially from media and civil society, stressed the problem
of polarisation of the Turkish society. As it was expressed, government media or government
supporters can see nothing good at all with opposition arguments and vice versa. In such a
climate, it is very difficult to get any agreement on voluntary rules or solutions of any kind.
There is mistrust so that also legitimate decisions may be immediately mistrusted and it is
very difficult to have a dialogue. It is quite clear that there will not be any self-regulation or
functioning codes of ethics in such a polarised situation as “one side” would mistrust any
rules set up or implemented by or with the participation of the “other side”.
We were informed that there is a possibility to get accredited to events even without the Press Card but
all interlocutors nevertheless agreed on the importance of the Press Card.
24
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Journalists´ own attitude was mentioned as a contributing factor to the difficulty to implement
international best practices for journalism. Many journalists see themselves rather as
“ideological agents” than objective news reporters. They may have clear agendas, especially
the important columnists, and the interplay of pressure and influence between politicians and
media (including media owners) is not always straight-forward. This has been a characteristic
of Turkish society for a while and if any trend is seen recently it is toward more Government
pressure and less of media being the more powerful player. At the same time, the growing
importance of social media means that such trends do not have the kind of important
influence that they would have had earlier.
As a small compensation for not having any self-regulatory system as such, some major
newspaper have their own ombudsmen, employed by the paper with the role to keep a critical
eye on the content of the paper. There are few such ombudsmen, fewer than some years ago,
and most of them are older, which was stated by one of them as an indication that the idea is
losing its attraction perhaps in a general sharpening of media content. The motivation to have
such ombudsmen whose main task is to criticise the very publication they work for is to show
a sense of responsibility and indicate the prestige of the paper in question.
II.12. Conclusions
As concluding remarks, it may be said that a number of improvements have been made in
recent years in the sphere of freedom of expression in Turkey as far as legislative changes are
concerned. The Constitutional Court ruling that overturned the ban on Twitter is a positive
sign (as is the introduction of individual complaints to the Constitutional Court), giving hope
that at least in some instances the independence of judiciary is respected. The fact that
previously taboo subjects can be discussed is also a positive sign. Fewer journalists are
imprisoned, with many having been released recently. Journalists confirmed that it is possible
to criticise the government or individual ministers, so there is no censorship as such, but such
critical remarks can only be made in a general, demagogical fashion and not on specific
issues: self-censorship and interference in the editorial freedom will set up such limits.
Thus, the general picture is not positive. The media scene – as well as society in general – is
increasingly polarised. This means that cooperation between media actors is not possible,
ethical principles are not generally applied. The courts and other institutions often do not
appear to respect principles of proportionality and necessity in a democratic society and the
way laws are applied have a chilling effect on the freedom of expression. The government
uses various means to put pressure on the media and does not respect the independence of the
judiciary, nor principles of editorial freedom of media. The ownership structure of media is
such that there are various ways in which pressure can be exerted and there are no signs that
this tangled web will be untangled in any near future or that politicians will refrain from
trying to influence media through different means. Given the increasing importance of social
media there are signs that such media will be targeted in the near future, as politicians do not
accept a society with less control over media content.
36
Working conditions for journalists are poor, which (together with the complex ownership
situation) leads to self-censorship. Collaborative mechanisms such as self-regulation are
however almost non-existent as the society and media are so polarised that such initiatives are
not possible.
II.13. Recommendations


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

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

No journalists should be imprisoned for their journalistic activity: it is essential
that courts interpret the changed Penal Code and Anti-Terror legislation in a strict
manner to avoid punishment for legitimate expressions of freedom of expression.
Defamation cases should not be initiated by politicians or public officials other
than in very extreme circumstances.
Specific legislation (and/or where possible, secondary legislation) on ownership
issues in the media area, with restrictions on cross-ownership, more
comprehensive rules on detecting real ownership and increased transparency
should be introduced. Ownership legislation should target real (including indirect)
ownership and complement general competition law. Initiatives for legal
regulation of media ownership should be taken without delay.
The application of tax legislation should be transparent so that it is avoided that it
is used to target media outlets.
Legislation on regulatory agencies for communications should ensure maximum
transparency of any procedures and decisions.
Appointment processes for regulatory agencies should be structured so as to
minimise political influence over appointments.
Media should examine any initiatives for self-regulation, to overcome to current
polarised media climate if at all possible.
Although there are limited possibilities to affect working conditions in private
companies concrete measure that can be taken to improve the working conditions
of journalists is to ensure that the labour laws are properly followed and social
guarantees extended to journalists.
It should be considered if the system of the Press Card could eventually be
abolished and journalists be judged as such based on the substance of their work.
This would support a more vigorous labour market. What should be done without
delay is to change the criteria for obtaining the Press Card, making it a real
possibility for all professional journalists, and ensure that it is issued by an
independent body without direct links to the Government.
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